The supreme court, and High courts have power to issue writs under Arts. 32 and 226 respectively. These writs have been borrowed in India from England.
Power to issue writs is primarily a provision made to make available the Right to Constitutional Remedies to every citizen . The right to constitutional remedies as we know is a guarantor of all other fundamental rights available to the people of India.
Types of Writs: There are five types of writs –Habeas corpus , Quo warranto , Mandamus , Certiorari and Prohibition
1. Habeas corpus: The latin term habeas corpus means ‘you must have the body ‘ and a writ for securing liberty. The Writ of Habeas Corpus is issued by the Courts in those cases where a person is illegally detained. By this Writ, the Court commands the person or authority who has detained or restrained another person to present such person before the Court.
2. Quo warranto: The term quo warranto means what is your authority . The writ of quo warranto is used to judicially control executive action in the matter of making appointments to public offices under relevant statutory provisions . The writ is also used to protect a citizen from the holder of a public office to which he has no right . The writ calls upon the holder of a public office to show to the court under what authority he is holding the office in question . The writ proceedings not only give a weapon to control the executive from making appointments to public office against law but also tend to protect the public from being deprived of public office to which it has a right.
3. Mandamus: Is a command issued by a court to an authority directing it to perform a public duty imposed upon it by law . For example , when a body omits to decide a matter which it is bound to decide , it can be commanded to decide the same. Mandamus can be issued to any kind of authority in respect of any type of function – administrative , legislative , quasi-judicial , judicial Mandamus is used to enforce the performance of public duties by public authorities .Mandamus is not issued when Government is under no duty under the law.
4. Certiorari: ‘Certiorari is a latin word meaning inform. Certiorari can only be issued by the Supreme court under Art. 32 and a High court under Art. 226 to direct , inferior courts , tribunals or authorities to transmit to the court the record of proceedings disposed of or pending therein for scrutiny , and , if necessary , for quashing the same. But a writ of certiorari can never be issued to call for the record or papers and proceedings of an Act or Ordinance and for quashing such an Act or Ordinance.
5. Prohibition: A writ of prohibition is normally issued when inferior court or tribunal (a) proceeds to act without jurisdiction or in excess of jurisdiction (b) proceeds to act in violation of rules of natural justice or (c) proceeds to act under a law which is itself ultra vires or unconstitutional or (d) proceeds to act in contravention of fundamental rights.
There is a fundamental distinction between writs of prohibition and certiorari. They are issued at different stages of proceedings . When an inferior court takes up a hearing for a matter over which it has no jurisdiction , the person against whom hearing is taken can move the superior court for writ of prohibition on which order would be issued forbidding the inferior court from continuing the proceedings . On the other hand if the court hears the matter and gives the decision , the party would need to move to superior court to quash the decision / order on the ground of want of jurisdiction.
Habeas corpus and Quo warranto being confined to specific situations, Certiorari and Mandamus are the two most commonly sought writs to control the actions of administrative bodies.
